DRI Today - Legal Research, Law Blog and Magazine Archives - FraudDRI’s flagship publication for over 40 years, is a national, monthly publication that contains original writings on topics of professional interest to lawyers and others concerned with the defense of civil actions.http://dritoday.org/
http://www.rssboard.org/rss-specificationBlogEngine.NET 1.6.1.0en-GBhttp://dritoday.org/opml.axdhttp://www.dritoday.org/syndication.axdDRIDRI Today - Legal Research, Law Blog and Magazine Archives0.0000000.000000Nursing Home Staff Falsification of Records<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">A frequent legal issue faced by nursing facilities is whether it had sufficient staff on hand to care for patients, and whether staff provided care as required by law. As a result, careful record keeping of patient care is necessary, and required, to ensure not only that care given is recorded, but to protect the facility from claims of negligence. Most nursing facilities require staff to not only take careful notes as treatment occurs, but to create weekly summaries of patients&rsquo; conditions and events. However, a problem arises when nursing staff are too busy to comply with this requirement. At times, the charting fails to occur at all, or worse, nursing staff create false records.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">Often times the duty of creating a weekly summary is assigned to the night shift nurses. Unfortunately, sometimes staff is too busy with patient care to complete their paperwork, which may result in a failure to draft a weekly summary. This results in a patient&rsquo;s chart containing only entries for care, rather than a summary of the week&rsquo;s events. The significance of this failure is that it evidences the nurse&rsquo;s failure to meaningfully review and summarize the patient&rsquo;s chart. Such a weekly review requires the nurse to take note of the overall care plan of a patient, and any issues or signs that might point to a need to amend the patient&rsquo;s care plan.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">Worse still is the case where a reviewing nurse fails to review and create a weekly summary, and creates a false summary without a legitimate review of the chart. This can result in improper treatment of a patient, as well as a failure in staff to recognize significant issues or stay abreast of recent changes. The weekly summary is an important tool to care givers, and in fact, those providing care of aware of its importance and necessity to providing appropriate care. And such, a failure to maintain a weekly summary or falsification of the summary can evidence of conscious disregard of patient&rsquo;s needs and of the facility&rsquo;s duties.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">A larger problem occurs when nursing staff not only fail to maintain the weekly summary, but fail to make any treatment notes as required each time a patient is checked on and/or treated. Falsification in this regard can easily be proven, where nursing staff recorded as having provided treatment can be demonstrated through time cards to not have been on duty. Falsification can occur by staff, realizing their failures, and attempting to cover up for themselves. However, more and more frequently such falsification is being committed by administrators who fear costly lawsuits.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">While California has a zero-tolerance stance on falsification of records, and such falsification of a medical record is a misdemeanor in California, staff is rarely charged because falsification can be difficult to prove and time consuming to identify. Nonetheless, nursing facilities need to take great care in ensuring its staff is properly maintaining patients&rsquo; records to protect against claims of negligence.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">In taking a stance against falsification of records, facilities should be aware of the more frequent instances in which it occurs: 1) by overworked or short staffed employees lacking sufficient time to complete paperwork; and 2) to cover up bad outcomes and limit liability. The most important thing a nursing facility can do to help prevent these circumstances is ensure it has sufficient staff on hand to provide proper care to all its patients. Facilities should also hold training sessions to educate staff members regarding record keeping requirements and techniques, as well as falsification of records. Not only should staff be aware that falsification will not be tolerated and of its criminal consequences, but they should also be trained regarding how to recognize falsification by other staff members.</span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;"><a name="_GoBack"></a></span></span></p>
<p style="vertical-align: baseline; background-image: initial; background-attachment: initial; background-size: initial; background-origin: initial; background-clip: initial; background-position: initial; background-repeat: initial;"><span style="font-family: Helvetica, sans-serif; color: #444444;"><span style="font-size: 13.3333330154419px; line-height: 22.533332824707px;">This blog was first posted on <strong>Jampol Zimet LLP Insurance Defense Blog</strong>. <a href="http://www.jzlaw.com/blog/nursing-home-staff-falsification-of-records/" target="_blank"><strong>Click here</strong></a> to read the original entry.&nbsp;</span></span></p>
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http://dritoday.org/post/Nursing-Home-Staff-Falsification-of-Records.aspx
Alan R. Jampolhttp://dritoday.org/post/Nursing-Home-Staff-Falsification-of-Records.aspx#commenthttp://dritoday.org/post.aspx?id=af090ae6-b0ed-4815-8258-a63e406ea682Wed, 18 Feb 2015 03:32:00 -1100FraudInsurance LawAlan R. Jampolhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=af090ae6-b0ed-4815-8258-a63e406ea68211http://dritoday.org/trackback.axd?id=af090ae6-b0ed-4815-8258-a63e406ea682http://dritoday.org/post/Nursing-Home-Staff-Falsification-of-Records.aspx#commenthttp://dritoday.org/syndication.axd?post=af090ae6-b0ed-4815-8258-a63e406ea682ON YOUR MARK…., GET SET…., SHOP!<p>With the start of the holiday shopping rush just a week away, retailers should be mindful of their responsibility to keep customers safe when large crowds gather to take advantage of well-advertised and highly-anticipated sales. Customers, drawn by the promise of &ldquo;doorbuster savings&rdquo; and warned of limited quantities, do not always act in the most courteous manner when rushing to enter the store and running toward the products they desire. &nbsp;Sadly, it has become all too common for injury, whether accidental or intentional, to occur as customers dash into and through stores during these special sales, and when a customer is injured during the clamor, a retailer can be held liable.</p>
<div>Although the law varies from state to state, in many states, a retailer&rsquo;s duty to use reasonable care to protect customers from reasonably anticipated injuries includes foreseeing that large crowds might gather due to the advertised sales and that individuals might be injured due to the overcrowding, the congestion at the door, or the unruliness of the other customers. &nbsp;Consequently, a retailer may be held liable to a customer who is injured due to pushing, crowding, trampling, or jostling by other customers when the retailer conducts a promotional activity or sale that will foreseeably cause crowds to gather and push.</div>
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<div>At least one jury has determined that reasonable care when undertaking a special promotion that might cause people to run, push, and shove includes the retailer giving warnings of the dangers involved, taking steps to control or police the crowd, using loud speakers to warn the crowd not to run over people, and warning the elderly or children to stay out of the crowd. &nbsp; &nbsp;Given the tragedies that have occurred in the past several years during &ldquo;Black Friday Sales,&rdquo; it is advisable for retailers to, at the very least, implement the above measures. &nbsp;However, the above measures may not be sufficient given the particular circumstances of a retailer. &nbsp;That is why each retailer should conduct a careful risk assessment evaluation that is tailored to its location and history. &nbsp;This assessment will allow the retailer to develop and implement a plan that keeps its customers safe and happy during this holiday season. Now go shopping!</div>
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http://dritoday.org/post/ON-YOUR-MARKe280a6-GET-SETe280a6-SHOP!.aspx
Philip M. Gulisanohttp://dritoday.org/post/ON-YOUR-MARKe280a6-GET-SETe280a6-SHOP!.aspx#commenthttp://dritoday.org/post.aspx?id=58c8fdfa-1bf7-4b3a-982d-498da28b609eThu, 15 Nov 2012 02:17:00 -1100CausationClass ActionsCommercial LitigationDefense PracticeEvidenceFraudHospitality LawInsurance IndustryLaw SuitReal Estate LawRetailPhilip M. Gulisanohttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=58c8fdfa-1bf7-4b3a-982d-498da28b609e0http://dritoday.org/trackback.axd?id=58c8fdfa-1bf7-4b3a-982d-498da28b609ehttp://dritoday.org/post/ON-YOUR-MARKe280a6-GET-SETe280a6-SHOP!.aspx#commenthttp://dritoday.org/syndication.axd?post=58c8fdfa-1bf7-4b3a-982d-498da28b609eRETAILERS WHO “SPY” BEWARE<p>Retailers providing consumers with electronics on a rent-to-own basis face many challenges in ensuring that they are paid for the electronics that they rent. &nbsp;In particular, computers are small and easy to hide if a retailer seeks to repossess the computer from a non-paying customer. &nbsp;The temptation to use software that allows the retailer to view where the computer is located and what the renter is doing with the computer is strong, however, the consequences of doing so can be high. &nbsp;Obtaining information from the computer without the renter&rsquo;s knowledge or consent not only erodes the renter&rsquo;s trust and confidence in the retailer, but also opens the retailer up to possible civil and criminal liability.</p>
<div>The recent settlement of charges brought against several rent-to-own companies by the Federal Trade Commission highlights that using software that can log onto a computer, turn on the webcam to take photographs, take screen shots of the computer user&rsquo;s activities on the computer, and log the keystrokes of the computer user, comes with a price. &nbsp; According to one news report, civil penalties are not a part of the settlement because civil penalties cannot be imposed for a first violation of the Federal Trade Commission Act. &nbsp;However, the companies are required to cease using their &ldquo;spy tools&rdquo; and, presumably in the future, advise renters of the use of tracking software. &nbsp;</div>
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<div>Further, aside from possible federal action and the costs associated with defending such actions, retailers need to consider possible civil and criminal liability under state laws. &nbsp;While laws vary from state to state, several states recognize a tort for invasion of privacy, such as intrusion upon seclusion. &nbsp;Capturing images of a person in a private setting, particularly while engaged in private acts, without the person&rsquo;s knowledge or consent, may subject a retailer to a civil action. &nbsp; Even in states that do not recognize a tort for invasion of privacy, under certain circumstances, a person who secretly videotapes an individual engaged in private actions may be liable for the tort of intentional infliction of emotional distress. &nbsp;Remember that if you use a webcam to take pictures of the area surrounding the computer, you may be capturing images of individuals other than the renters. &nbsp;Criminal liability is also arguably possible if the state has a statute prohibiting unlawful surveillance and, in some states, there is the possibility, in certain situations, of criminal liability for installing and using key stroke logging software to collect personal information.</div>
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<div>If you decide that despite the risks, it is necessary to install and use tracking software, be sure to advise renters of the presence of the software, its uses, and your policy on its use. &nbsp;The best practice would be to obtain an acknowledgement from the renter, in writing, that the renter was so advised.</div>
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http://dritoday.org/post/RETAILERS-WHO-e2809cSPYe2809d-BEWARE.aspx
Philip M. Gulisanohttp://dritoday.org/post/RETAILERS-WHO-e2809cSPYe2809d-BEWARE.aspx#commenthttp://dritoday.org/post.aspx?id=ca38993d-54e1-4e54-8050-d18e5baeb2c0Thu, 27 Sep 2012 02:22:00 -1100Defense PracticeElectronic DiscoveryEvidenceFraudPrivacyRetailTechnologyPhilip M. Gulisanohttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=ca38993d-54e1-4e54-8050-d18e5baeb2c01http://dritoday.org/trackback.axd?id=ca38993d-54e1-4e54-8050-d18e5baeb2c0http://dritoday.org/post/RETAILERS-WHO-e2809cSPYe2809d-BEWARE.aspx#commenthttp://dritoday.org/syndication.axd?post=ca38993d-54e1-4e54-8050-d18e5baeb2c0Three (or is it Four?) Teams on This Legal Gridiron<p>With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game. &nbsp;Legal observers will have their own action to watch although this is likely to last several seasons. &nbsp; &nbsp;</p>
<div>In 2011, several former players suffering a variety of neurological disorders sued the NFL for negligence and fraud relating to whether the NFL knew and withheld that knowledge that concussions and other head injuries incurred during the playing of football could lead to long term brain damage and related side effects (no comment). &nbsp;Many of these suits received class action status and were removed to the United States District Court for the Eastern District of Pennsylvania.&nbsp;</div>
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<div>On August 13, 2012, the roster of players on this legal gridiron expanded to include the NFL&rsquo;s insurance companies. &nbsp;Alterra America Insurance Company, an excess insurance provider, filed suit in New York State Supreme Court in Manhattan seeking a declaratory judgment stating that Alterra</div>
<div><span style="white-space:pre"> </span>1)<span style="white-space:pre"> </span>does not have a duty to defend the NFL against player lawsuits</div>
<div><span style="white-space:pre"> </span>2)<span style="white-space:pre"> </span>does not have a duty to indemnify the NFL against player lawsuits</div>
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<div>Two days later, the NFL and NFL Properties filed suit against 32 insurance companies (or nearly every major insurer in the country as reported by Reuters) &nbsp;including Alterra asking the Court to require these insurers to defend and indemnify the NFL from the players&rsquo; suits. &nbsp;Why so many insurers? &nbsp;Because the NFL sued nearly every insurer that it has ever had regardless if a current business relationship currently exists. &nbsp;This is mostly a dispute about when duty to defend triggers. &nbsp;The NFL in its papers argues it&rsquo;s when the injury occurs. National Football League v. Fireman&rsquo;s Fund Insurance, BC490342, California Superior Court, Los Angeles County at 12. &nbsp;This becomes a bit of problem because different insurers insured the NFL at different times going back to 1963. Determining which injury (if only one) caused the long term damage, when that particular injury occurred and which policy was in effect at that particular time is going to be messy to say the least.&nbsp;</div>
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<div>However, the more interesting story here takes place nearly a week later. &nbsp;On August 21, Travelers&rsquo; Insurance followed &ldquo;suit&rdquo; and filed its own action against the NFL and the other insurance companies seeking a declaratory judgment with roughly the same arguments as Alterra. &nbsp;What makes this interesting is the fine distinction that Travelers&rsquo; makes in its papers which is how the other insurance companies become involved. &nbsp;</div>
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<div>Travelers' argues that its only obligation is to NFL Properties and not to the NFL itself (both the NFL and NFL Properties have been parties to these suits). &nbsp; Travelers&rsquo; argues that it never insured the NFL (whom we guess Travelers&rsquo; believes is going to take the brunt of any payout either in the form of a judgment or settlement) and therefore shouldn&rsquo;t have to bear any of the NFL&rsquo;s costs. Traveler&rsquo;s suit against the other insurance companies is a pre-emptive strike against its peers who &ldquo;may dispute Travelers&rsquo; position with respect to some or all of the foregoing matters, and make seek contribution from Travelers&rsquo; with respect to defense costs and/or indemnity paid under the policies they issued to the NFL and/or NFL Properties with respect [to the players&rsquo; law suits].&rdquo; Discovery Property &amp; Casualty Co. v. National Football League, 652933/2012, New York State Supreme Court, New York County (Manhattan) at 19.</div>
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<div>It looks like all the players are in their respective formations&hellip; and there&rsquo;s the kickoff.</div>
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<div><span class="MsoFootnoteReference"><span style="font-size: 10.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-size: 9pt;">[1]</span></span><!--[endif]--></span></span><span style="font-size: 9.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;"> </span><span style="font-size: 9.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Ben Berkowitz, &ldquo;NFL Sues Dozens of Insurers Over Player Injury Claims.&ldquo; <em>Reuters</em>.&nbsp; 08/16/12.&nbsp; Accessed on 08/28/12.&nbsp; Available at: <a href="http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932." target="_blank">http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932.</a></span></div>
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http://dritoday.org/post/Three-(or-is-it-Four)-Teams-on-This-Legal-Gridiron.aspx
Dan Gerber and Aaron J. Aisenhttp://dritoday.org/post/Three-(or-is-it-Four)-Teams-on-This-Legal-Gridiron.aspx#commenthttp://dritoday.org/post.aspx?id=073daf1a-f2a0-4653-99d6-4805ebeb8d01Wed, 29 Aug 2012 02:02:00 -1100Business LitigationCausationClass ActionsDamagesDefense PracticeDiscoveryEmployment/Labor LawEvidenceFraudInsurance IndustryInsurance LawLaw SuitPersonal InjurySports LawDan Gerber and Aaron J. Aisenhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=073daf1a-f2a0-4653-99d6-4805ebeb8d010http://dritoday.org/trackback.axd?id=073daf1a-f2a0-4653-99d6-4805ebeb8d01http://dritoday.org/post/Three-(or-is-it-Four)-Teams-on-This-Legal-Gridiron.aspx#commenthttp://dritoday.org/syndication.axd?post=073daf1a-f2a0-4653-99d6-4805ebeb8d01Internet Broadens Definition of Federal Wire Fraud<p><span style="font-family: arial, helvetica, sans-serif;"><span style="font-family: mceinline;"><span style="color: black; font-size: 10pt;">As a recent post on<a href="http://www.pointoflaw.com/archives/2012/06/decision-on-web-sites-likely-to-yield-more-federal-fraud-prosecutions.php" target="_blank"> PointofLaw.com</a> noted, the Tenth Circuit recently affirmed the convictions of Howard O. Kieffer.&nbsp; Kieffer, who for several years practiced criminal defense law, had a problem - he never went to law school and had no license to practice law.&nbsp; A </span>California<span style="color: black; font-size: 10pt;"> resident, Kieffer held himself out as a criminal defense attorney via a domain name with a Virginia&nbsp;</span><span style="color: black; font-size: 10pt;">company, which also hosted the web site.&nbsp; The government argued that the web site he maintained, which was accessed by two of his victims, in Colorado&nbsp;</span><span style="color: black; font-size: 10pt;">and Tennessee</span><span style="color: black; font-size: 10pt;">, was a &ldquo;wire communication in interstate commerce&rdquo; sufficient to establish jurisdiction under the federal wire fraud statute.</span></span></span></p>
<p class="MsoNormal"><span style="font-family: arial, helvetica, sans-serif;"><span style="font-family: mceinline;"><span style="color: black; font-size: 10pt;">One aspect, in particular, of the Tenth Circuit decision raises eyebrows.&nbsp; The issue is what constitutes an interstate wire for the purpose of the wire fraud statute.&nbsp; The <a href="http://lawprofessors.typepad.com/whitecollarcrime_blog/2012/06/keiffer-decision-extends-wire-fraud.html" target="_blank">White Collar Crime Professor Blog</a> identified this as a particularly important issue in the cyber-connected world we now live in.&nbsp; This issue has been evolving for some time, as shown in United States v.&nbsp;</span><span style="color: black; font-size: 10pt;">Phillips, 376 F. Supp2d 6 (D. Mass. 2005).&nbsp; There, the court rejected the government argument that &ldquo;in order to satisfy the elements of the wire fraud offense, it was not necessary to present evidence that the pertinent wire communications themselves actually crossed state lines, as long as the communications (whether interstate or intrastate) traveled via an &lsquo;instrument of an integrated system of interstate commerce,&rsquo; such as the interstate phone system.&rdquo;&nbsp; More recently, the Tenth Circuit, in </span>United States<span style="color: black; font-size: 10pt;"> v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), held that one person&rsquo;s use of the internet, &ldquo;standing alone&rdquo; was insufficient evidence that the item &ldquo;traveled across state lines in interstate commerce.&rdquo;</span></span></span></p>
<p class="MsoNormal"><span style="font-family: Arial, sans-serif; color: black;"><span style="font-size: small;"><span style="font-family: mceinline;">Therefore, it is now somewhat surprising to read in Kieffer that the Tenth Circuit changed its position.&nbsp; The court noted that before the website could reach the local host server, it had been uploaded by Kieffer to the Virginia company, and then transmitted from Virginia to Colorado and Tennessee. Based on those facts, the court held that "[t]he presence of end users in different states, coupled with the very character of the internet&rdquo; permitted the jury to infer transmission across state lines.&nbsp; Now, under Kieffer, an allegation that a web site was used to perpetrate fraud would give rise to federal wire fraud jurisdiction in nearly every case.&nbsp; Stated differently, given the &ldquo;the very character of the internet,&rdquo; it is unlikely that a defendant will reside in the same state as his web site host and victims.&nbsp; </span></span></span></p>
<p class="MsoNormal"><span style="color: black; font-family: Arial, sans-serif;"><span style="font-size: small;"><span style="font-family: mceinline;">Now, as Paul F. Enzinna noted, unless other courts reject Kieffer, the potential exists for a surge in federal wire fraud prosecutions.&nbsp; With Kieffer seemingly establishing such minimal interstate contact requirements, it would seem that virtually any viewing or use of a web site could be used to trigger federal jurisdiction.</span></span></span></p>
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http://dritoday.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx
Chad Godwinhttp://dritoday.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx#commenthttp://dritoday.org/post.aspx?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9fWed, 27 Jun 2012 01:49:00 -1100Attorney-Client Privilege Business LitigationCivil Justice SystemCivil RulesCommercial LitigationCorporate AmericaCriminal LiabilityDiscoveryEvidenceFederal RegulationsFraudSecurities Exchange ActSecurities LitigationTechnologyChad Godwinhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9f0http://dritoday.org/trackback.axd?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9fhttp://dritoday.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx#commenthttp://dritoday.org/syndication.axd?post=3db938b0-a79f-4fb1-b392-5d2de2d70d9fRule 5.5 ABA Model Rules of Professional Conduct<p><span style="font-family: Arial, sans-serif; font-size: 10pt;">In the upcoming Annual Meeting of the ABA, the Commission of Ethics 20/20 will consider amending Model Rule 5.5, which addresses unauthorized practice of law issues.&nbsp; Of particular concern is the issue of whether the Rule needs to be amended to address whether the proliferation of lawyers' use of technology allows them to maintain a "virtual practice" in a jurisdiction in which they are otherwise not licensed to practice.&nbsp; The key issue centers around the question of how much "virtual practice" is sufficiently "systematic and continuous" to require an attorney to become licensed in a particular jurisdiction.</span></p>
<p class="MsoNormal"><span style="font-family: Arial, sans-serif; font-size: 10pt;">If you have seen the draft proposal to amend Model Rule 5.5, which was circulated in September 2011, but sent back to the drawing board because of feedback suggesting that it did more to cloud the issues than to clarify the issues, you probably felt the same way.&nbsp;</span></p>
<p class="MsoNormal"><span style="font-family: Arial, sans-serif; font-size: 10pt;">In my humble opinion, at least for the time being, it may be much ado about nothing.&nbsp; The rule as it stands appears to address most issues, and there probably needs to be considerably more in-depth analysis and&nbsp;study before any tweeking to the Rule occurs.&nbsp; We've all dealt with pro hac vice issue, serving as and locating "local" counsel when necessary, and electronic filing hasn't really changed the process of being admitted, even if just temporarily, to a particular jurisdiction.&nbsp;Nonetheless,&nbsp;we&nbsp;have all seen how&nbsp;the practice of law has changed over the past ten to fifteen years, particularly as our dependence on electronic communication&nbsp;has multiplied exponentially, and&nbsp;this opinion&nbsp;could change as that dependence grows more and more.</span></p>
<p class="MsoNormal">&nbsp;</p>
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http://dritoday.org/post/Rule-55-ABA-Model-Rules-of-Professional-Conduct.aspx
Winston Harlesshttp://dritoday.org/post/Rule-55-ABA-Model-Rules-of-Professional-Conduct.aspx#commenthttp://dritoday.org/post.aspx?id=3a5d87ae-4433-4e68-b152-4a3acd4a5b7fMon, 25 Jun 2012 04:21:00 -1100Civil Justice SystemContinuing Legal EducationDefense PracticeFederal RegulationsFraudLawyers' Professionalism and EthicsProfessional LiabilityWinston Harlesshttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=3a5d87ae-4433-4e68-b152-4a3acd4a5b7f0http://dritoday.org/trackback.axd?id=3a5d87ae-4433-4e68-b152-4a3acd4a5b7fhttp://dritoday.org/post/Rule-55-ABA-Model-Rules-of-Professional-Conduct.aspx#commenthttp://dritoday.org/syndication.axd?post=3a5d87ae-4433-4e68-b152-4a3acd4a5b7fThe ethics of legal service “groupons” – Accidents waiting to happen.<p>Last week, the<a href="http://blogs.wsj.com/law/2012/01/25/the-daily-writing-sample-groupon-ethics-opinion/" target="_blank"> Wall Street Journal Law Blog</a> wrote about a recent <a href="http://www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions825present/EO_897.pdf" target="_blank">New York ethics opinion</a> approving legal advertising on Groupon and other group coupon sites. &nbsp;These services allow consumers to pay one price up front for a service that is more valuable. A restaurant, for example, may offer a $50 meal for $25 that is paid immediately. An attorney, <a href="http://www.groupon.com/stlouis/deals/law-offices-of-craig-s-redler-associates" target="_blank">like this one</a>, for example, may offer to provide a will for $99. &nbsp;New York wasn&rsquo;t the first state to weigh in on the issue--<a href="http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/ArticleId/1012/Ethics-Advisory-Opinion-11-05.aspx" target="_blank">South Carolina</a> has, too--and it probably won&rsquo;t be the last.&nbsp;</p>
<div>Both New York and South Carolina have approved groupon lawyer advertising per se despite claims that it constitutes the improper sharing of legal fees with a non-lawyer. However, and probably of more practical use to one considering running a groupon lawyer deal, the opinion of each state shows that it is essentially a path fraught with dangerous ethical pitfalls. &nbsp;For example, New York identified a laundry list of issues aside from fee-sharing that may be implicated in the typical scenario depending on the facts, including improper payment for referral, excessive fees, advertising violations, improper creation of the lawyer-client relationship, conflicts of interest, and improper scope of representation.</div>
<div><br /></div>
<div>With these potential ethical pitfalls in mind, not to mention the questionable effectiveness and taste of such advertising, it is doubtful that legal service groupons will ever become too common.&nbsp;</div>
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Matthew D. Haydohttp://dritoday.org/post/The-ethics-of-legal-service-e2809cgrouponse2809d-e28093-Accidents-waiting-to-happen.aspx#commenthttp://dritoday.org/post.aspx?id=e8a38c98-f5a7-4718-a580-1f3b647d82d6Mon, 30 Jan 2012 01:50:00 -1100Civil Justice SystemDefense PracticeFraudInternetLaw Practice EconomicsLegal MalpracticeMarketingProfessional LiabilityMatthew D. Haydohttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=e8a38c98-f5a7-4718-a580-1f3b647d82d61http://dritoday.org/trackback.axd?id=e8a38c98-f5a7-4718-a580-1f3b647d82d6http://dritoday.org/post/The-ethics-of-legal-service-e2809cgrouponse2809d-e28093-Accidents-waiting-to-happen.aspx#commenthttp://dritoday.org/syndication.axd?post=e8a38c98-f5a7-4718-a580-1f3b647d82d6A Modern-Day SOPA Opera: SOPA, OPEN, PIPA, oh my!<p>Listen up, all you internet users (which is basically everybody but my mother, who still views the Internet as the work of the devil, and will quote from the book of Revelation in support of her theory). &nbsp;Three bills you need to be aware of, because they may change the way you view (or more correctly, the way you are allowed to view) the Internet. &nbsp;and from what I&rsquo;m reading, there are some pretty darned big sites and companies that are ready to either &ldquo;go dark&rdquo; in protest (Wikipedia, for example, which is where I do most of my legal research) or lend a big supporting hand to the protests of the current bills being considered (Google is one &ndash; who can live a day without Googling something? &nbsp;I mean for cryin&rsquo; out loud the Company has made itself into a verb!!). &nbsp;Those bills are:</p>
<div>1. &nbsp;Stop Online Piracy Act (or &ldquo;SOPA&rdquo;).</div>
<div><br /></div>
<div>2. &nbsp;Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP or PIPA, which is easier but less descriptive. &nbsp;I&rsquo;ve never seen a bill with a name so long it requires not one but two abbreviations).</div>
<div><br /></div>
<div>3. &nbsp;The Online Protection &amp; ENforcement of Digital Trade Act (or &ldquo;OPEN&rdquo; Act &ndash; again- what is it with thinking up names for these acts? But I guess &ldquo;OPAENDTA&rdquo; doesn&rsquo;t quite roll off the toungue). &nbsp;</div>
<div><br /></div>
<div>Sounds simple enough, right? &nbsp;I mean, who doesn&rsquo;t want to stop people from stealing stuff and using the Internet to get away with it? Uh, hold on--not so fast there, scooter. &nbsp; Here&rsquo;s a quick overview, along with the pretty darned serious problems that exist. &nbsp;The main thought is that there is a serious problem (which there really is) regarding piracy on the Internet. &nbsp;As paraphrased from the OPEN site (http://keepthewebopen.com) the problem can be illustrated like this: downloading a movie from a foreign website is like buying a foreign product, but there really aren&rsquo;t any trade laws equipped to deal with the online purchases from foreign sites. &nbsp;</div>
<div><br /></div>
<div>The SOPA bill allows the Department of Justice and copyright holders to seek court orders against websites accused of enabling or facilitating copyright infringement. &nbsp;The court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a crime, with a maximum penalty of five years in prison for ten such infringements within six months. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.</div>
<div><br /></div>
<div>Proponents of SOPA say it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites. &nbsp; Opponents say that it violates the First Amendment, is Internet censorship, and will threaten whistle-blowing and other free speech actions. A number of protest actions have been planned, including boycotts of companies that support the legislation, and major Internet companies &ldquo;going dark&rdquo; for a day (coinciding with hearing dates). &nbsp;</div>
<div><br /></div>
<div>PIPA (or &lsquo;PROTECT IP&rdquo;, or whatever else you want to call it), appears to be SOPA&rsquo;s twin, but in the Senate. &nbsp;&nbsp;</div>
<div><br /></div>
<div>OPEN is, from what I can glean, a &ldquo;bipartisan&rdquo; bill written in response to the harsh criticism SOPA is receiving. (I always tend to squint my eyes when I see the word &ldquo;bipartisan&rdquo;). &nbsp;</div>
<div>Even the White House has entered the fray, with a post just a few days ago regarding the subject. &nbsp;Here&rsquo;s a part of that post: &nbsp;</div>
<div><br /></div>
<div style="text-align: center; ">Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.</div>
<div><br /></div>
<div>And when the White House says &ldquo;whoa&rdquo;, you know there is likely a heckuva lot of pressure (political, economic, you name it) coming down against the proposed Act. &nbsp;</div>
<div><br /></div>
<div>So who&rsquo;s right? &nbsp;Well, everybody. &nbsp;Is there a lot of intellectual property piracy on the open internet seas? &nbsp;Absolutely. &nbsp;Does it need to be dealt with? &nbsp;No question. &nbsp;Do the SOPA and PIPA bills overreach and create more problems than they purport to solve? &nbsp;Yep. &nbsp;The bills do use the U.S. Court system to create a type of &ldquo;internet police&rdquo; as it pertains to copyrighted material. &nbsp;They also greatly increase the work flowing to litigators and litigation firms among other things, driving up (WAY up) the cost of doing business, which will most certainly hurt businesses generally and small businesses especially, &nbsp;because whether they are involved or not, others will be so involved, which will drive up the overall cost of products across the board as the increased cost is passed on to the consumer as much as possible. &nbsp;And how/why is it that the US Courts will be essentially graced with the responsibility of policing the Internet for the entire world? &nbsp; &nbsp;</div>
<div>Now that I&rsquo;ve lit the fire and started the debate, feel free to discuss amongst yourselves (hey- it isn&rsquo;t my job to give answers, just point out the questions). &nbsp; &nbsp;</div>
<div>&nbsp;&nbsp;</div>
<div><span style="font-family: arial, sans-serif; font-size: x-small;"><span style="line-height: 10px;"><em>Jeffrey Curran is Of Counsel with Gable Gotwals in Oklahoma City, OK</em></span></span></div>
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http://dritoday.org/post/A-Modern-Day-SOPA-Opera-SOPA-OPEN-PIPA-oh-my!.aspx
Jeff Curranhttp://dritoday.org/post/A-Modern-Day-SOPA-Opera-SOPA-OPEN-PIPA-oh-my!.aspx#commenthttp://dritoday.org/post.aspx?id=60f02005-4dc8-4bcf-9b4d-de19423e96c0Wed, 18 Jan 2012 01:57:00 -1100Business LitigationCommercial LitigationCopyright infringementDiscoveryFederal RegulationsFraudIntellectual PropertyLaw Practice ManagementLaw SuitSocial MediaJeff Curranhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=60f02005-4dc8-4bcf-9b4d-de19423e96c00http://dritoday.org/trackback.axd?id=60f02005-4dc8-4bcf-9b4d-de19423e96c0http://dritoday.org/post/A-Modern-Day-SOPA-Opera-SOPA-OPEN-PIPA-oh-my!.aspx#commenthttp://dritoday.org/syndication.axd?post=60f02005-4dc8-4bcf-9b4d-de19423e96c0The FTC Reins in Facebook<p>In the wild, wild west of the internet, it looks like the Federal Trade Commission is saddling up to play the role of sheriff. On November 29, 2011, the FTC announced its proposed settlement of claims against the social networking goliath, Facebook. (By the way, you can read about it on the Commission&rsquo;s Facebook page. <a href="http://www.facebook.com/federaltradecommission?v=wall" target="_blank">http://www.facebook.com/federaltradecommission?v=wall</a>.) The settlement resolves an eight-count administrative complaint charging Facebook with misleading their users by telling them they would protect the privacy of personal information, but repeatedly allowing that information to be shared with third parties or made public without the users&rsquo; knowledge or consent. &nbsp;(<em>In the matter of Facebook, Inc.,</em> File no. 092 3188.) Coming on the heels of the FTC&rsquo;s March 2011 settlement of charges that Google, Inc. violated its own privacy promises to consumers when it rolled out its social network site, Google Buzz (<em>In the Matter of Google, Inc.</em>, File no. 102 3136), the Facebook case demonstrates the agency is willing to use consumer protection laws to &ldquo;make sure companies live up to the privacy promises they make to American consumers.&rdquo;&nbsp;<a href="http://ftc.gov/opa/2011/11/privacysettlement.shtm" target="_blank">http://ftc.gov/opa/2011/11/privacysettlement.shtm</a>.)</p>
<div>The FTC&rsquo;s charges stemmed from representations Facebook made to users regarding their ability to restrict access to personal information they loaded onto the site. &nbsp;For example, according to the FTC, the company told users they could restrict access to personal data by using a &ldquo;Friends Only&rdquo; setting, but in fact, software applications developed by third parties -- &ldquo;third-party apps&rdquo; -- and employed by the users&rsquo; &ldquo;Friends&rdquo; could still access and collect the allegedly restricted data. &nbsp;Facebook further misled users by telling them that third-party apps could not access data unnecessary to run the apps, and that Facebook would not share information with advertisers. &nbsp;Neither of those representations was true. &nbsp;Also, in December 2009, the company allegedly overrode users&rsquo; privacy settings when it enacted wholesale changes that public disclosed previously restricted information such as &ldquo;Friends&rdquo; lists, without first getting the users&rsquo; approval to enact these changes. &nbsp;(You can read Facebook&rsquo;s eight alleged deceptions &nbsp;in the complaint at the FTC&rsquo;s website - <a href="http://ftc.gov/os/caselist/0923184/111129facebookcmpt.pdf" target="_blank">http://ftc.gov/os/caselist/0923184/111129facebookcmpt.pdf</a>.)</div>
<div><br /></div>
<div>Under the proposed settlement, Facebook will be prohibited from making any further deceptive privacy claims, from changing the way it shares a user&rsquo;s data without first obtaining the user&rsquo;s approval, and from allowing anyone to access a user&rsquo;s information more than 30 days after the user deletes his or her account. &nbsp;In addition, Facebook will be required to maintain a comprehensive privacy program intended to address privacy concerns associated with both new and existing products used on its site. &nbsp;To ensure the existence and proper administration of its privacy program, Facebook will be audited by an independent third party every two years for the next twenty years. &nbsp;Though the settlement does not impose any monetary sanctions, Facebook could incur fines of up to $16,000 per day if it fails to comply with its terms. &nbsp;The FTC will take public comments on the proposed settlement through December 30, 2011. &nbsp;</div>
<div><br /></div>
<div>The FTC&rsquo;s charges focused on Facebook&rsquo;s failure to live up to its own representations regarding data security, not the simple fact that it shared personal data with third parties. This tack derived from the consumer protection standards underlying the complaint -- specifically, section 5(a) of the Federal Trade Commission Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce.&rdquo; (15 U.S.C. &sect;. 45(a)(1)). &nbsp;(The FTC also is tasked with enforcing the Children&rsquo;s Online Privacy Protection Act, 15 U.S.C. &sect; 6501 et seq., which imposes restrictions on operators of commercial websites who knowingly collect personal information from children under age 13, but that statute was not invoked in this case.) &nbsp;</div>
<div>While it is easy to view this decision primarily as a vindication of personal privacy interests -- and in many ways, it is -- it really reflects a victory in the FTC&rsquo;s efforts to defend consumer rights. &nbsp;Facebook&rsquo;s problems arose not from the dissemination of data, but from its failure to live up to its own promises. &nbsp;Had Facebook not told its users that it would protect certain personal data, or had it simply informed users more fully regarding their December 2009 changes in their privacy practices, it is likely they could have disseminated the data precisely as they did, but avoided their run-in with the FTC. &nbsp;</div>
<div><br /></div>
<div>Facebook remains under criticism for other data collection practices, such as tracking webpages visited by both members and non-members. &nbsp;As quoted in USA Today, West Virginia Senator Jay Rockefeller urges the passage of new laws to help consumers &ldquo;protect their personal information from companies surreptitiously collecting and using . . . personal information for profit.&rdquo; <a href="http://www.usatoday.com/tech/news/story/2011-11-29/facebook-settles-with-ftc/51467448/1" target="_blank">(http://www.usatoday.com/tech/news/story/2011-11-29/facebook-settles-with-ftc/51467448/1</a>) Whether or not those new laws come to pass, the FTC has demonstrated that consumer protection laws already on the books give it some potent guns for policing the internet frontier.</div>
<div><br /></div>
<div><em>Jim Fieweger is a partner in the Chicago law firm Williams, Montgomery &amp; John. &nbsp;A former Assistant United States Attorney in the Northern District of Illinois, Jim is an experienced trial lawyer whose practice focuses on commercial litigation and white collar criminal defense. &nbsp;Jim is a member of the DRI Government Enforcement and Corporate Compliance Committee.</em></div>
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http://dritoday.org/post/The-FTC-Reins-in-Facebook.aspx
Jim Fiewegerhttp://dritoday.org/post/The-FTC-Reins-in-Facebook.aspx#commenthttp://dritoday.org/post.aspx?id=2dd00174-75d5-4c7c-a1fc-ee0d3dc48379Mon, 05 Dec 2011 02:03:00 -1100Climate ChangeCorporate AmericaDefense PracticeDiscoveryEmployment/Labor LawFederal RegulationsFraudIdentity TheftPrivacySocial MediaJim Fiewegerhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=2dd00174-75d5-4c7c-a1fc-ee0d3dc483790http://dritoday.org/trackback.axd?id=2dd00174-75d5-4c7c-a1fc-ee0d3dc48379http://dritoday.org/post/The-FTC-Reins-in-Facebook.aspx#commenthttp://dritoday.org/syndication.axd?post=2dd00174-75d5-4c7c-a1fc-ee0d3dc48379Regulators Release Volcker Rule for Public Comments – Banks Will Likely Have Plenty<p>This week, the FDIC and SEC approved the Volcker Rule and released a draft for public comments. &nbsp;Bank regulators will have to solidify the Rule in the coming months, as the Rule is set to take effect in July, 2012 &ndash; although banks would have three years to comply with the Rule.&nbsp;</p>
<div>Part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule limits the type of investments that banks can make with their own money. &nbsp;A result of the financial crisis, the Rule seeks to reign in the behavior that caused banks to fail in 2008. &nbsp;The Rule is named after former Federal Reserve Chairman Paul Volcker, a man who criticized bank practices long before the financial crisis. &nbsp;The Rule applies to banks that have government guarantees and may even impose limits on financial companies supervised by the Federal Reserve Board. &nbsp;</div>
<div><br /></div>
<div>The Volcker Rule places two big limitations on banks. &nbsp;First, the Rule prohibits banks from owning or controlling hedge funds and private equity funds: a bank cannot own more than three percent of a hedge fund or private equity fund, and cannot invest more than three percent of its capital in such funds. &nbsp;</div>
<div><br /></div>
<div>Second, the Rule prohibits banks from engaging in proprietary trading. &nbsp;Proprietary trading occurs when a bank makes trades for its own benefit, rather than for the benefit of a customer. &nbsp;There are a few exceptions to this rule though, including trades of foreign currencies, commodities, and government bonds. &nbsp;Additionally, banks can engage in proprietary trading if they are hedging while trading on behalf of a customer. &nbsp;And banks may still act as market-makers and underwriters. &nbsp; &nbsp; &nbsp;</div>
<div>The Rule is not without problems though. &nbsp;Even its supporters claim note that the Rule may not be strict enough, and may contain loopholes. &nbsp;Also, it can be difficult to draw a line between proprietary trades and trades made for customers. &nbsp;</div>
<div><br /></div>
<div>Wall Street is certainly not happy with the additional regulations. &nbsp;Compliance will create new costs; the Rule requires banks to create internal compliance programs overseen by executives. &nbsp;And Moody's noted that the Rule gives certain companies, like investment firms and offshore banks, a competitive advantage because they are not subject to the regulations. &nbsp;</div>
<div><br /></div>
<div>At almost 300 pages, the Volcker Rule will likely receive several public comments in the next few months, including some very loud ones from Wall Street. &nbsp;</div>
<div><br /></div>
<div><em>William F. Auther is a partner with an active trial practice in business litigation and Kelly M. McInroy is a law clerk in the Phoenix office of Bowman and Brooke LLP. &nbsp;</em></div>
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http://dritoday.org/post/Regulators-Release-Volcker-Rule-for-Public-Comments-e28093-Banks-Will-Likely-Have-Plenty.aspx
William F. Auther and Kelly McInroyhttp://dritoday.org/post/Regulators-Release-Volcker-Rule-for-Public-Comments-e28093-Banks-Will-Likely-Have-Plenty.aspx#commenthttp://dritoday.org/post.aspx?id=fca87762-25b7-4a84-a169-8214a251a77eThu, 13 Oct 2011 02:14:00 -1100AntitrustBusiness LitigationCommercial LitigationFederal RegulationsFinancial SystemFraudMortgage LitigationSecurities LitigationWilliam F. Auther and Kelly McInroyhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=fca87762-25b7-4a84-a169-8214a251a77e0http://dritoday.org/trackback.axd?id=fca87762-25b7-4a84-a169-8214a251a77ehttp://dritoday.org/post/Regulators-Release-Volcker-Rule-for-Public-Comments-e28093-Banks-Will-Likely-Have-Plenty.aspx#commenthttp://dritoday.org/syndication.axd?post=fca87762-25b7-4a84-a169-8214a251a77eLawyer Pleads No Contest to Insurance Fraud – Probation & Restitution Only<p>California Insurance Commissioner Dave Jones announced August 19, 2011 that Susana Ragos Chung, 60, a Los Angeles area based attorney has been sentenced in Alameda Superior Court for Insurance Fraud. Chung entered pleas of no contest on two felony counts for violations of Section 549 of the Penal Code, recklessly submitting fraudulent insurance claims. She was sentenced to five years formal probation and to also pay $117,561 in restitution to insurance companies for 15 separate fraudulent claims. In addition, she was ordered to pay $235,123 to the state restitution fund. Chung agreed to place herself on inactive status with the California State Bar pending its mandatory investigation into her criminal conduct, which may result in her disbarment.</p>
<p>In August 2003, the California Department of Insurance (CDI), Benicia Regional Office, Fraud Division, Urban Auto Fraud Task Force initiated an investigation known as "Phantom Menace" into organized automobile insurance fraud in the Bay Area. The Task Force included Investigators from the California Highway Patrol, and Alameda and San Francisco County District Attorney's Offices. As a result of the information and evidence gathered by the Task Force CDI began an undercover investigation in July 2004, which included contacting numerous auto body shops, medical offices and law offices.</p>
<p>Task force members were able to infiltrate a sophisticated auto fraud organized crime ring operating in the Bay Area. This ring was working with law offices in the Los Angeles area. One of these law offices was owned and operated by Chung. In November 2004, task force members acting in undercover capacities were solicited to participate in staged collisions. Numerous collisions were staged and undercover officers were referred to auto body repair shops, medical offices and law offices in an effort to file false automobile insurance claims and secure substantial bodily injury claim settlements.</p>
<p>Between 2003 and 2007, Chung participated in this fraud ring by submitting insurance claims for suspects who staged these collisions for profit. Chung represented the claimants who were allegedly "injured" in these fake collisions. The majority of the people she represented never met her, and many did not even know they had an attorney. Nearly 100 people have been convicted in Alameda County over the last several years as part of this conspiracy, including more than 90 staged collision participants, and three chiropractors. The majority of the participants in these staged collisions readily admitted to law enforcement that no accident had ever occurred.</p>
<p>I understand that California jails are crowded and criminals are being let loose to ease the crowding but running a major fraud ring, in the opinion of ZIFL, requires some real jail time and seizure of the guilty lawyer&rsquo;s assets. Mr. Jones should not be bragging about this result he should be complaining that the court is being too kind.</p>
<p>&nbsp;</p>
<p>From Zalma's Insurance Fraud Letter, September 1, 2011 available free at &ndash; <a href="http://www.zalma.com/ZIFL-CURRENT.htm" target="_blank">http://www.zalma.com/ZIFL-CURRENT.htm</a>.</p>
<p>&nbsp;</p>
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http://dritoday.org/post/Lawyer-Pleads-No-Contest-to-Insurance-Fraud-e28093-Probation-Restitution-Only.aspx
Barry Zalmahttp://dritoday.org/post/Lawyer-Pleads-No-Contest-to-Insurance-Fraud-e28093-Probation-Restitution-Only.aspx#commenthttp://dritoday.org/post.aspx?id=84880949-e7cd-428d-9023-3b1ab56faccaFri, 09 Sep 2011 03:05:00 -1100AutomotiveFraudInsurance LawLegal MalpracticeBarry Zalmahttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=84880949-e7cd-428d-9023-3b1ab56facca1http://dritoday.org/trackback.axd?id=84880949-e7cd-428d-9023-3b1ab56faccahttp://dritoday.org/post/Lawyer-Pleads-No-Contest-to-Insurance-Fraud-e28093-Probation-Restitution-Only.aspx#commenthttp://dritoday.org/syndication.axd?post=84880949-e7cd-428d-9023-3b1ab56faccaWho Got Caught?<p>Arturo Fonseca, 47; Isis Torres, 37; Francisco Portillo, 41; Eduardo Romero, 44; and William Madrigal, 56, five South Floridians pleaded guilty in Miami federal court to their roles in a massive Medicare fraud scheme.</p>
<p>Fonseca, Torres, Portillo, Romero and were among 26 suspects in three states indicted in December 2009 on charges of running the scheme that totaled $61 million, according to the U.S. Department of Justice. At the plea hearing, Fonseca admitted to being an owner and operator of Courtesy Medical Group Inc., a purported medical clinic in Miami. According to court documents, Courtesy provided medical documents so that the home health agencies could bill the Medicare program for expensive home health services and therapy for beneficiaries that did not need and in some cases did not receive the treatments. According to the indictment, approximately 344 prescriptions were issued through Courtesy and signed by Fonseca&rsquo;s co-defendant, Dr. Fred Dweck. As a result, the Medicare program was fraudulently billed approximately $16.6 million for home health services.</p>
<p>According to plea documents, Romero admitted to being a patient recruiter for ABC Home Health Care Inc., and Florida Home Health Care Providers Inc., two Miami-area home health care agencies. Romero admitted that in his role as a patient recruiter, he would solicit and receive kickbacks and bribes from the owners of ABC and Florida Home Health in return for providing Medicare beneficiaries that the home health agencies could use to bill the Medicare program for unnecessary home health care services. Romero also admitted to paying kickbacks and bribes to the owners and operators of Courtesy in return for the prescriptions for unnecessary home health care services.</p>
<p>Medicare was billed approximately $391,593 for home health care services that were not medically necessary or were not rendered for the patients recruited by Romero and one of his co-defendants. The owners and operators of ABC and Florida Home Health pleaded guilty in a separate case and are awaiting sentencing.</p>
<p>According to plea documents, Portillo and Torres were nurses and falsified patient files for ABC and Florida Home Health to make it appear that the patients qualified for home health care services, when they did not and in some instances never received any treatments. According to court documents, Portillo was responsible for approximately $142,000 in fraudulent Medicare billing and Torres was responsible for approximately $528,400 in fraudulent Medicare billing. According to plea documents, Madrigal, a Medicare beneficiary, admitted that he solicited and received kickbacks and bribes in return for allowing ABC and Florida Home Health to bill Medicare for home health care services for which he did not qualify. Madrigal admitted that as a result of his role in the scheme, approximately $68,760 was fraudulently billed to Medicare for unnecessary home health care and therapy.</p>
<p>Why are these people allowed to plea to obtain smaller sentences and keep a good chunk of their ill-gotten gains? Is it time for the anti-fraud effort to go nationwide instead of just a few states?</p>
<p><em>From Zalma&rsquo;s Insurance Fraud Letter, available free at </em><a href="http://www.zalma.com/ZIFL-CURRENT.htm"><em>http://www.zalma.com/ZIFL-CURRENT.htm</em></a></p>
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http://dritoday.org/post/Who-Got-Caught.aspx
Barry Zalmahttp://dritoday.org/post/Who-Got-Caught.aspx#commenthttp://dritoday.org/post.aspx?id=e0030822-14ba-461c-ad84-16ad09082bd0Fri, 13 Aug 2010 03:49:00 -1100FraudMedical LiabilityBarry Zalmahttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=e0030822-14ba-461c-ad84-16ad09082bd00http://dritoday.org/trackback.axd?id=e0030822-14ba-461c-ad84-16ad09082bd0http://dritoday.org/post/Who-Got-Caught.aspx#commenthttp://dritoday.org/syndication.axd?post=e0030822-14ba-461c-ad84-16ad09082bd0Willie Sutton & Misappropriation of Business Assets - "That's Where the Money Is"<p>
Willie Sutton, the infamous bank robber, when asked why he robbed banks is <a href="http://en.wikipedia.org/wiki/Willie_Sutton#An_urban_legend" target="_blank" title="wikipedia urban legend"><strong>credited</strong></a> with responding &quot;Because that&#39;s where the money is.&quot; In today&#39;s market place, the money is in a company&#39;s information, e.g., customer lists, pricing, methodology, know-how, research, development, and related proprietary and confidential information. And like the banks in Mr. Sutton&#39;s day, companies are increasingly finding they are being robbed of their information by unscrupulous departing employees and competitors. For example, in a recent BusinessWeek article (BW, Feb. 16, 2009), <a href="http://www.businessweek.com/magazine/content/09_07/b4119052687973.htm" target="_blank" title="Catch a Corporate Thief"><em><strong>To Catch a Corporate Thief</strong></em></a>, an employee resigned, but reported his company issued laptop stolen. It turned out this employee had been poached by the former employer&#39;s competitor and the stolen laptop was actually the get-away-car for business methodologies, system designs, customer lists, and related proprietary information.<br />
<br />
While there are a <a href="http://jshinn.wordpress.com/2008/12/01/remember-mr-murphy-when-it-comes-to-protecting-intellectual-property/" target="_blank" title="Defending the Digitial Workplace"><strong>number of measures</strong></a> companies can take to prevent or otherwise minimize business theft/unfair competition (For a great summary of&nbsp; non-compete considerations <a href="http://www.gruntledemployees.com/gruntled_employees/2009/02/how-to-lose-a-noncompete-case.html" target="_blank" title="great summary of non-compete"><strong>click here</strong></a>, Eight Ways to Lost a Non-compete Case), companies that fail to take such steps are left with the unsatisfactory choice of litigation or waiting for a &quot;thank you&quot; card from the benefactor of the competitive advantages you&#39;ve bankrolled over the years. In regard to litigation, companies have in recent years relied upon the Computer Fraud and Abuse Act&nbsp; (CFAA) to combat the theft of business information. See <a href="http://www.box.net/shared/5llcrefqm8" target="_blank" title="Mich Manufacture Insight-2008"><strong>Adding to the Playbook</strong></a>.<br />
<br />
The CFAA creates civil liability under specified conditions. For employers bringing suit against former employees engaged in wrongful conduct, the relevant conditions are generally where someone:<br />
<br />
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains- ...<br />
<br />
(C) information from any protected computer if the conduct involved an interstate or foreign communication; [or] ...<br />
<br />
(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value ...; [or]<br />
...<br />
(5)(A)(ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage FN2; or<br />
(iii) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage.<br />
18 U.S.C. &sect; 1030(a)(2), (4), (5)(A)(ii) and (iii); see also &sect; 1030(g) (providing for civil liability for violations involving certain conduct, including conduct causing a loss of at least $5,000 in value). Thus, paragraphs (a)(2) and (a)(4) apply only if the defendant accesses the computer<em> <strong>&quot;without authorization&quot;</strong></em> or <em><strong>&quot;exceeds authorized access,&quot;</strong></em> while paragraph (a)(5)(A)(ii) or (iii) applies only if the defendant accesses the computer <strong><em>&quot;without authorization.&quot;<br />
</em></strong><br />
There are two schools of judicial thought as to what <strong><em>&quot;without authorization&quot;</em></strong> or <strong><em>&quot;exceeds authorized access&quot;</em></strong> means.<br />
<br />
The first approach focuses on the defendant&#39;s intent or use of the information in finding liability under the CFAA. See, e.g., <em>International Airport Ctrs., L.L.C. v. Citrin</em>, 440 F.3d 418, 420-21 (7th Cir.2006); <em>Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc.,</em> 119 F.Supp.2d 1121, 1124 (W.D.Wash.2000). In <em>Shurgard</em>, the court, in concluding that the plaintiff had stated a claim under paragraph (a)(2)(C) of the CFAA, held that the plaintiff&#39;s former employees had acted without authorization when they obtained information from the plaintiff&#39;s computers because, under agency law,&nbsp; the&nbsp; employee&#39;s authorization terminated when he allegedly became an agent of the defendant competitor during the act. See <em>Shurgard,</em> 119 F.Supp.2d at 1124. In <em>Citrin</em>, the court similarly held that the defendant&#39;s authorization to access the plaintiff&#39;s computer files had terminated when he violated his duty of loyalty to his employer imposed by agency law. See <em>Citrin</em>, 440 F.3d at 420-21.<br />
<br />
In contrast, under the second approach a number of courts have rejected the Shurgard and Citrin courts&#39; reliance on agency law in applying the authorization provisions of the CFAA. These courts generally find that a &quot;without authorization&quot; violation under the CFAA only occurs when initial access is not permitted and an &quot;exceeding authorized access&quot; violation occurs only when the defendant has permission to access the computer in the first place, but then accesses certain information to which he is not entitled. See <em>Condux Int&#39;l, Inc. v. Haugum</em>, (D. Minn. Dec.15, 2008);<em> Black &amp; Decker (US), Inc. v. Smith</em>, 568 F. Supp.2d 929, 933-36 (W.D.Tenn.2008); <em>Shamock Foods Co. v. Gast</em>, 535 F.Supp.2d 962, 963-68 (D.Ariz.2008); <em>Diamond Power Int&#39;l, Inc. v. Davidson</em>, 540 F.Supp.2d 1322, 1341-43 (N.D.Ga.2007); <em>Brett Senior &amp; Assocs., P.C. v. Fitzgerald</em>, 2007 WL 2043377, at *3-4 (E.D.Pa. July 13, 2007); <em>Lockheed Martin Corp. v. Speed</em>, 2006 WL 2683058, at *4-7 (M.D.Fla. Aug.1, 2006); <em>International Ass&#39;n of Machinists &amp; Aerospace Workers v. Werner-Masuda</em>, 390 F.Supp.2d 479, 498-99 (D.Md.2005).<br />
<br />
So what is the take-away for employers?<br />
<br />
Returning to Mr. Sutton, he packed a gun -- either a pistol or a Thompson sub-machine gun -- when he robbed financial institutions, noting, <a href="http://en.wikipedia.org/wiki/Willie_Sutton" target="_blank" title="&quot;You can't rob a bank on charm and personality.&quot;">&quot;You can&#39;t rob a bank on charm and personality.&quot;</a> Mr. Sutton, however, <a href="http://en.wikipedia.org/wiki/Willie_Sutton" target="_blank" title="Willie Sutton">reportedly</a> never carried a loaded gun because somebody might get hurt. In contrast (and metaphorically speaking) companies cannot afford to shoot blanks when it comes to protecting business critical information. At the outset, proper and reasonable measures should be implemented for protecting such information. For examples and considerations, <a href="http://jshinn.wordpress.com/2008/12/01/remember-mr-murphy-when-it-comes-to-protecting-intellectual-property/" target="_blank" title="Defending the Digital Workplace">click here</a>. However, if when these measures are not sufficient to prevent the theft of business assets, the CFAA is a great resource to have as backup. And even where courts have taken a narrower view of its applicability, proper planning in advance of litigation can provide a solid factual basis for a CFAA claim - just don&#39;t plan on relying on charm and personality: It didn&#39;t work for Willie Sutton (he spent half his life in prison) and it probably won&#39;t work for your company and (certainly not) your attorney.<br />
<br />
Jason M. Shinn<br />
Lipson Neilson Cole<br />
<a href="mailto:jshinn@lipsonneilson.com">jshinn@lipsonneilson.com</a>
</p>
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http://dritoday.org/post/Willie-Sutton-Misappropriation-of-Business-Assets-Thats-Where-the-Money-Is.aspx
Jason M. Shinnhttp://dritoday.org/post/Willie-Sutton-Misappropriation-of-Business-Assets-Thats-Where-the-Money-Is.aspx#commenthttp://dritoday.org/post.aspx?id=7a62c348-6111-4dee-9ee7-6c85ec402083Wed, 04 Mar 2009 04:56:00 -1100Employee TheftEmployment/Labor LawFraudIntellectual PropertyJason M. Shinnhttp://dritoday.org/pingback.axdhttp://dritoday.org/post.aspx?id=7a62c348-6111-4dee-9ee7-6c85ec4020830http://dritoday.org/trackback.axd?id=7a62c348-6111-4dee-9ee7-6c85ec402083http://dritoday.org/post/Willie-Sutton-Misappropriation-of-Business-Assets-Thats-Where-the-Money-Is.aspx#commenthttp://dritoday.org/syndication.axd?post=7a62c348-6111-4dee-9ee7-6c85ec402083